Members of the U.S. House house of representatives have taken a step toward extending some of the financial protections provided to seniors receiving long-term care in home or community settings. They have the support of more than a dozen health care organizations.

To financially qualify for Medicaid long-term care and support (LTSS), an individual must meet certain low-income and minimal asset limitations. Marriage often complicates those eligibility requirements. In some cases, one spouse can be put in the position where it is necessary to “spend down” or bankrupt themselves to secure Medicaid benefits to pay for long term-care support for their partner.

Medicaid, as the payer of last resort, is currently the primary payer for long-term care services and support in the U.S. health care system. According to federal Medicaid data, as of August 2018, more than 66 million individuals combined were enrolled in Medicaid.

To prevent self-induced bankruptcy for the purpose of continuing a spouse’s Medicaid eligibility, Congress created spousal impoverishment rules in the late 1980s. Originally, the rules required states to protect a portion of a married couple’s income and assets to provide for the “community spouse’s” living expenses when determining nursing home financial eligibility, according to the Kaiser Family Foundation. States, though, were also given the option to apply the rules to home and community-based services (HCBS) waivers, which most states, including Florida have done.

Section 2404 of the Affordable Care Act (ACA) changed that stipulation, mandating that the spousal impoverishment rules treat Medicaid HCBS and institutional care equally. The institutional care program is the Medicaid program that provides benefits for skilled nursing facilities so that those elderly people who need long term care, but cannot afford it, can receive that care through the Medicaid program. The ACA provision is set to expire at the end of December 2018, meaning individual states would once again have the authority to make program coverage decisions when it comes to spousal impoverishment in the home care setting.

In 2018, all 50 states were applying the spousal impoverishment rules to HCBS waivers, according to Kaiser Family Foundation. Five states — Arkansas, Illinois, Maine, Minnesota and New Hampshire — plan to stop applying the spousal impoverishment rules to some or all of their HCBS waivers if Section 2404 expires at the end of 2018.

With support from LeadingAge, the National PACE Association, the National Council on Aging and several other groups, U.S. Reps. Debbie Dingell (D-Mich.) and Fred Upton (R-Mich.) on Friday introduced the Protecting Married Seniors from Impoverishment Act.

If passed, the legislation would permanently extend spousal impoverishment protections for Medicaid beneficiaries receiving long-term care in a home or community care setting. “Our long-term care system is broken,” Rep. Dingell said in a statement. “Seniors and their families already face too many challenges when navigating long-term care, and they should not have to get divorced or go broke just to be eligible for the care they need.”

At this time it is unclear how much Congressional support the Protecting Married Seniors from Impoverishment Act will ultimately draw. Perhaps, the fact that most states plan to continue protections on a voluntary basis is encouraging. Anyone who may be impacted by this proposed legislation should contact their representative and express their support for the legislation.

LeadingAge, a Washington, D.C. based association representing more than 6,000 not-for-profit senior care providers supports the proposed federal law establishing protections against spousal impoverishment. The National Academy of Elder Law Attorneys, Inc., the National Association for Home Care & Hospice and AARP are other groups that have supported issues involving “spousal impoverishment” in the past two years.

If you or a member of your family needs to establish eligibility for Medicaid benefits to pay for long term care, without the necessity of spousal impoverishment, we can help you accomplish that objective. Please call us to schedule a consultation.

The following message was released on November 30, 2018, by the Centers for Medicare & Medicaid Services (CMS), a division of the Department of Health and Human Services, announced actions that will bolster nursing home oversight and improve transparency in order to ensure that facilities are staffed adequately to provide high-quality long term care. These actions include sharing data with states when potential issues arise regarding staffing levels and the availability of onsite registered nurses; clarifying how nursing home facilities should report hours and deduct time for staff meal breaks; and providing long term care facilities with new tools to help ensure their resident census is accurate.

“CMS takes very seriously our responsibility to protect the safety and quality of care for our beneficiaries,” said CMS Administrator Seema Verma. “Today CMS is taking important steps to protect nursing home residents based on potential risks revealed by new payroll-based staffing data that our Administration released. We’re deeply concerned about potential inadequacies in staffing, such as low weekend staffing levels or times when registered nurses are not onsite, and the impact that this can have on patient care. The actions announced today strengthen our oversight of resident health and safety, and help ensure accurate public reporting.”

Research shows the ratio of nurses to residents impacts quality of care and health outcomes. For example, facilities with higher nurse staffing levels tend to have fewer resident hospitalizations. In general, the new payroll-based staffing data shows most facilities have somewhat fewer staff on weekends, but some facilities have significantly lower weekend staffing. Additionally, some facilities have reported days with no registered nurse onsite, although nursing homes are generally required by law to have a registered nurse onsite eight hours a day, seven days a week.

To help address these risks, CMS will use frequently-updated payroll-based data to identify and provide state survey agencies with a list of nursing homes that have a significant drop in staffing levels on weekends, or that have several days in a quarter without a registered nurse onsite. State survey agencies will then be required to conduct surveys on some weekends based on this list. If surveyors identify insufficient nurse staffing levels, the facility will be cited for noncompliance and required to implement a plan of correction.

These oversight initiatives are part of broader efforts CMS has underway to strengthen safety and health outcomes for nursing home residents. For example, the Nursing Home Compare website and facility Star Ratings are key resources CMS provides to increase transparency into nursing home quality and help consumers and their caregivers make informed decisions.

Medicaid is the primary source of payment for residents of skilled nursing homes. This action by the Federal government will help nursing home residents, and their families, have more confidence that there will be adequate nurses to provide quality care for the residents of such long term care facilities.

We can help you achieve eligibility for Medicaid benefits to pay for long term care in a skilled nursing facility. If you, or a family member, need the services of a skilled nursing facility, but need Medicaid to pay for that care, please call to schedule an appointment so we can help your family member get Medicaid eligible.

Economic Role of Long Term Care Facilities in Florida

Contribute to nearly 259,250 jobs and support $9.1 billion in labor income through employment of both direct caregivers and support staff (i.e, food service, maintenance, social workers)

Generate over $2.3 million in state and federal tax revenue

Long term care centers contribute to other businesses through a ripple effect, with each nursing home job resulting in two additional jobs or nearly $5 of added economic activity within a local community.

You may be afraid of losing your house to the nursing home, the State, or otherwise, if you must enter a nursing home and apply for Medicaid benefits to pay for the nursing home. While this fear may be well-founded in the vast majority of states, transferring the home to your children is usually not the best way to protect it, and that’s especially true in Florida.

Although you generally do not have to sell your home in order to qualify for Medicaid coverage of nursing home care, the state could file a claim in your probate estate against the house after you die. If you get help from Medicaid to pay for the nursing home, the state must attempt to recoup from your estate whatever benefits it paid for your care. This is called Medicaid “estate recovery.” If you want to protect your home from Medicaid estate recovery, you may be tempted to give it to your children. In Florida, that could be a costly mistake. Even for states other than Florida, there are at least three reasons not to transfer your home to your children.

Reason No. 1: Florida Homestead Protection.

The first reason you probably will not want to transfer your home to your children in Florida, is that in Florida your homestead property is protected from claims of creditors, including Medicaid estate recovery. The Florida Constitution specifically provides that creditors (including Medicaid) cannot attach a lien to your homestead property. In Florida, even if you go into a nursing home, there is a presumption that you have an “intent to return” to your homestead property which continues the protection from creditors even if you move into a nursing home. Medicaid estate recovery, therefore, is not an issue in Florida for your homestead property, so long as it retains its homestead character.

The homestead protection from creditors continues through the probate estate in Florida, unless you have no legal heirs at the time of your death. “Legal heirs” are defined in the Florida Statutes, Chapter 732. If there is a chance that you won’t have legal heirs, or if you want certain specified heirs to receive your homestead property at your death, an enhanced life estate deed (sometimes called a “lady bird” deed), can be used to provide for the automatic transfer of your homestead immediately upon your death. The transfer of the ownership of the home will not be subject to probate or to the claims of your creditors (including the State of Florida Medicaid estate recovery). Florida is one of just a few states that recognize the enhanced life estate deed. The transfer by an enhanced life estate deed also avoids the other three reasons for not transferring your home to your children that are listed below.

Reason No. 2: Medicaid ineligibility.

Most people do not realize that transferring your house to your children (or someone else) may make you ineligible for Medicaid for a period of time. The Florida Medicaid agency looks at any transfers made within five years of the Medicaid application. If you made a transfer for less than market value within that time period, the Florida Medicaid agency will impose a penalty period during which you will not be eligible for any Medicaid benefits. Depending on the house’s value, the period of Medicaid ineligibility could stretch for years. The right to receive Medicaid benefits would not begin until the Medicaid applicant has almost completely spent down all of their money and other assets.

There are certain circumstances which can allow you to transfer a home without penalty. You should consult a qualified and experienced elder law attorney before making any transfers. The exceptions that might allow you may freely transfer your home to the following individuals without incurring a transfer penalty include:

(a) to your spouse;

(b) to a child who is under age 21 or who is blind or disabled;

(c) into a trust for the sole benefit of a disabled individual under age 65 (even if the trust is for the benefit of the Medicaid applicant, under certain circumstances);

(d) a sibling who has lived in the home during the year preceding the applicant’s institutionalization and who already holds an equity interest in the home;

(e) a “caretaker child,” who is defined as a child of the person applying for Medicaid benefits, who lived in the house for at least two years prior to the applicant’s institutionalization in a nursing home, and who during that period provided care that allowed the applicant to avoid or delay moving into a nursing home stay.

Reason No. 3: Loss of Control.

In addition to the potential loss of Medicaid benefits to pay for nursing home care caused by a transfer to your children, after transferring your house to your children, you will no longer own the house. That means you will not have control of it. Your children can do what they want with the house. In addition, if your children are sued or get divorced or die, the house will be vulnerable to their creditors.

Reason No. 4: Adverse Tax Consequences.

Adverse tax consequences. Inherited property receives a “step up” in tax basis when you die, which means the tax basis is the current value of the property. However, when you give property to a child, the tax basis for the property is the same price that you purchased the property for. If your child sells the house after you die, he or she would have to pay capital gains taxes on the difference between the tax basis and the selling price. The only way to avoid some or all of the tax is for the child to live in the house for at least two years before selling it. In that case, the child can exclude up to $250,000 ($500,000 for a couple) of capital gains from taxes.

Often our clients seeking Medicaid benefits to help pay for nursing home care, or other long term care, are concerned about financial protections available to the stay at home spouse. They want to know how many assets or how much income the healthy spouse will be allowed to keep to ensure the financial well-being of the non-Medicaid spouse. Medicaid rules allow the healthy spouse to retain a certain level of assets, as well as provide for the healthy spouse to receive sufficient income, to maintain basic financial protections for the healthy spouse.

Medicaid Protections for Financial Assets for the Healthy Spouse

Medicaid law provides special protections for the spouses of Medicaid applicants to make sure the spouses have the minimum support needed to continue to live in the community while their husband or wife is receiving long-term care Medicaid benefits, usually in a nursing home.

One of the most important protections is the “community spouse resource allowance” or CSRA. It works this way: if the Medicaid applicant is married, the countable assets of both the community spouse and the institutionalized spouse are totaled as of the date of “institutionalization,” the day on which the ill spouse enters either a hospital or a long-term care facility in which he or she then stays for at least 30 days. (This is sometimes called the “snapshot” date because Medicaid is taking a picture of the couple’s assets as of this date.)

In order to be eligible for Medicaid benefits a nursing home resident may have no more than $2,000 in assets (an amount may be somewhat higher in some states). In general, the community spouse may keep one-half of the couple’s total “countable” assets up to a maximum of $123,600 (in 2018). This is the community spouse resource allowance (CSRA), the most that a state may allow a community spouse to retain without a hearing or a court order. The least that a state may allow a community spouse to retain is $24,720 (in 2018).

Example: If a couple has $100,000 in countable assets on the date the applicant enters a nursing home, he or she will be eligible for Medicaid once the couple’s assets have been reduced to a combined figure of $52,000 — $2,000 for the applicant and $50,000 for the community spouse.

Some states, including Florida, however, are more generous toward the community spouse. In these states, the community spouse may keep up to $123,600 (in 2018), regardless of whether or not this represents half the couple’s assets. For example, if the couple had $100,000 in countable assets on the “snapshot” date, the community spouse could keep the entire amount, instead of being limited to half.

Medicaid Income Protection for the Healthy Spouse

Although Medicaid limits the assets that the spouse of a Medicaid applicant can retain, the income of the “community spouse” is not counted in determining the Medicaid applicant’s eligibility. Only income in the applicant’s name is counted. Thus, even if the community spouse is still working and earning, say, $5,000 a month, she will not have to contribute to the cost of caring for her spouse in a nursing home if he is covered by Medicaid. In some states, however (not including Florida), if the community spouse’s income exceeds certain levels, he or she does have to make a monetary contribution towards the cost of the institutionalized spouse’s care. The community spouse’s income is not considered in determining eligibility, but there is a subsequent contribution requirement.

But what if most of the couple’s income is in the name of the institutionalized spouse and the community spouse’s income is not enough to live on? In such cases, the community spouse is entitled to some or all of the monthly income of the institutionalized spouse. How much the community spouse is entitled to depends on what the local Medicaid agency determines to be a minimum income level for the community spouse. This figure, known as the minimum monthly maintenance needs allowance or MMMNA, is calculated for each community spouse according to a complicated formula based on his or her housing costs. The MMMNA may range from a low of $2,030 to a high of $3,090 a month (in 2018). If the community spouse’s own income falls below his or her MMMNA, the shortfall is made up from the nursing home spouse’s income.

Example: Joe and Sally Smith have a joint income of $2,400 a month, $1,700 of which is in Mr. Smith’s name and $700 is in Ms. Smith’s name. Mr. Smith enters a nursing home and applies for Medicaid. The Medicaid agency determines that Ms. Smith’s MMMNA is $2,000 (based on her housing costs). Since Ms. Smith’s own income is only $700 a month, the Medicaid agency allocates $1,300 of Mr. Smith’s income to her support. Since Mr. Smith also may keep a $105-a-month personal needs allowance, his obligation to pay the nursing home is only $295 a month ($1,700 – $1,300 – $105 = $295).

In exceptional circumstances, community spouses may seek an increase in their MMMNAs either by appealing to the state Medicaid agency or by obtaining a court order of spousal support. Your elder law attorney can explain these options to you.

Medicaid Exempt Assets

Medicaid also provides for certain assets to be exempt, or non-countable resources. Exempt assets vary from state to state. In Florida, exempt assets include the homestead that is used as the primary residence of the community spouse; an automobile, certain types of real estate, and other assets with special circumstances. The exempt assets are not counted in determining Medicaid eligibility, and typically the stay at home spouse can retain these assets to provide financial support for him or her.

Conclusion

There are many financial protections built into the Medicaid rules and statutes that help to ensure the community spouse who remains in the home has sufficient assets and income to avoid impoverishment. We can help you determine what assets are exempt and can be retained, as well as how many other assets can be protected from nursing home spend down, and how to ensure that the healthy spouse has the maximum income allowed by law.

If you, your spouse or loved one, needs only a Qualified Income Trust to qualify for Medicaid benefits to help pay for nursing home care, you can prepare a qualified income trust, online, by clicking this button:

Medicare is supposed to provide up to 35 hours a week of home care to those who qualify, but many Medicare patients with chronic conditions are being wrongly denied such care, according to Kaiser Health News. For a variety of reasons, many home health care agencies are simply telling patients they are not covered.

Medicare is mandated to cover home health benefits indefinitely. In addition, Medicare is required to cover skilled nursing and home care even if a patient has a chronic condition. Unfortunately, many home health providers are not aware of the law and tell home health care patients that they must show improvement in order to receive benefits.

According to a Kaiser Health News article, confusion over whether or not improvement is required (it is not) is one part of the problem. Another issue is that home health care workers are afraid they will not get paid if they take on long-term care patients. In an effort to crack down on fraud, Medicare is more likely to audit providers who provide long-term care. This encourages providers to favor patients who need short-term care.

If you are a Medicare beneficiary receiving skilled care for a chronic condition, you no longer have to show improvement in order to have the care covered, but your provider (such as a doctor, home care agency, or nursing home) may not know this. Even though a recent lawsuit settlement mandated a nationwide educational campaign for providers, many are still refusing to provide needed treatment, claiming that Medicare will not cover it.

For about 30 years, home health agencies and nursing homes that contract with Medicare have routinely terminated the Medicare coverage of a beneficiary who has stopped improving, even though nothing in the Medicare statute or its regulations says improvement is required for continued skilled care. Under a settlement agreement in Jimmo v. Sebelius, the federal government agreed to update Medicare rules to require that Medicare cover skilled care as long as the beneficiary needs skilled care, even if it would simply maintain the beneficiary’s current condition or slow further deterioration.

The policy shift affects beneficiaries with conditions like multiple sclerosis, Alzheimer’s disease, Parkinson’s disease, ALS (Lou Gehrig’s disease), diabetes, hypertension, arthritis, heart disease, and stroke. In addition, under the settlement Medicare beneficiaries who received a final denial of Medicare coverage after January 18, 2011 (the date the lawsuit was filed) are entitled to a review of their claim denial.

In addition, Medicare’s Home Health Compare ratings website may be having a negative effect on home health care agencies’ willingness to provide for long-term care patients. One measure of care qualification is whether a patient is improving. Because patients with chronic conditions don’t necessarily improve, they could lower an agency’s rating. Also, under a rule that just went into effect, home health care agencies cannot dismiss a patient without a doctor’s note. This may make agencies even more reluctant to take on long-term care patients.

The government launched an educational campaign in January 2018 to explain the settlement and the new rules to Medicare providers like home care agencies and nursing homes, but according to a Reuters article, many providers remain unaware of what is covered or how to bill Medicare for the services. The campaign was not aimed at beneficiaries, so not all Medicare beneficiaries are aware of the rules and that they can fight a denial of coverage.

Reuters focuses on one beneficiary, Robert Kleiber, 78, who receives weekly visits from a physical therapist to alleviate symptoms of his Parkinson’s disease. Kleiber’s wife recently learned that the treatments should be covered under Medicare’s new rules but so far she has been unable to convince the home health care provider of this.

If you experience problems with a Medicare provider, the Center for Medicare Advocacy has several self-help packets explaining how to appeal improvement standard denials.

Americans spent nearly $163 billion for long-term care in skilled nursing facilities and continuing care retirement communities (CCRC) in 2016, according to a recent U.S. Government report.

The Centers for Medicare & Medicaid Services’ National Health Care Spending report for 2016, published December 27, 2017, in Health Affairs, found that total healthcare spending in the United States increased 4.3% in 2016, reaching $3.3 trillion.

When it comes to long-term care, $162.7 billion was spent last calendar year. That marks the highest point in total nursing care and CCRC spending to date, compared to $140.5 billion in 2010. The annual growth rate for nursing care facilities and CCRCs hit 2.9% for 2016, down from 3.7% the prior year.

All Medicaid-related goods and services experienced slower growth in 2016 than in previous year, except for nursing homes and CCRCs, according to the report. Total Medicaid expenditures for 2016 increased 3.9% to reach $565.5 billion. In total, Medicaid spending made up 17% of the nation’s total health expenditures for last year.

Medicare spending made up 20% of total healthcare spending in 2016, at $672.1 billion. Medicare fee-for-service spending growth slowed down in 2016, due in part to declines in spending on long-term care in nursing homes, the report found. That drop in Medicare spending for long-term care was driven by a lower use of services and a smaller increase in the Medicare reimbursement rate.

The overall slower growth of healthcare spending in the U.S. in 2016 is likely due to a deceleration of the “major changes” experienced by the industry in previous years, such as provisions of the Affordable Care Act that expanded insurance options. For that reason, 2016 may mark “a return to the more typical relationship between annual rates of growth in healthcare spending and growth in nominal GDP,” researchers wrote.

A recent report from Health Affairs projected long-term care spending to continue to climb over the next decade, driven by the rapidly aging U.S. population. That report predicted that nursing facilities and CCRC spending would grow at an average rate of 5.2% per year until 2024, reaching $274 billion in total spending.

If you need assistance with qualifying for Medicaid to pay for long-term care in a skilled nursing facility, we can help. Call 904-448-1969 to schedule an appointment to discuss how to get you or your loved one qualified for Medicaid benefits to pay for long-term care while preserving as many family assets as allowed by law.

In 2018, Social Security recipients will get their largest cost of living increase in benefits since 2012, but the additional income will likely be largely eaten up by higher Medicare Part B premiums.

Cost of living increases are tied to the consumer price index, and an upturn in inflation rates and gas prices means recipients get a small boost in 2018, amounting to $27 a month for the typical retiree. The 2 percent increase is higher than last year’s .3 percent rise and the lack of any increase at all in 2016. The cost of living change also affects the maximum amount of earnings subject to the Social Security tax, which will grow from $127,200 to $128,700.

The increase in benefits will likely be consumed by higher Medicare premiums, however. Most elderly and disabled people have their Medicare Part B premiums deducted from their monthly Social Security checks. For these individuals, if Social Security benefits don’t rise, Medicare premiums can’t either. This “hold harmless” provision does not apply to about 30 percent of Medicare beneficiaries: those enrolled in Medicare but who are not yet receiving Social Security, new Medicare beneficiaries, seniors earning more than $85,000 a year, and “dual eligibles” who get both Medicare and Medicaid benefits. In the past few years, Medicare beneficiaries not subject to the hold harmless provision have been paying higher Medicare premiums while Medicare premiums for those in the hold harmless group remained more or less the same. Now that seniors will be getting an increase in Social Security payments, Medicare will likely hike premiums for the seniors in the hold harmless group. And that increase may eat up the entire raise, at least for some beneficiaries.

For 2018, the monthly federal Supplemental Security Income (SSI) payment standard will be $750 for an individual and $1,125 for a couple.

No one wants to think about his or her death, but a little preparation in the form of a prepaid funeral contract can be useful. In addition to helping your family after your death, a prepaid funeral contract can be a good way to spend down assets in order to qualify for Medicaid.

A prepaid or pre-need funeral contract allows you to purchase funeral goods and services before you die. The contract can be entered into with a funeral home or cemetery. Prepaid funeral contracts can include payments for: embalming and restoration, room for the funeral service, casket, vault or grave liner, cremation, transportation, permits, headstones, death certificates, and obituaries, among other things.

One benefit of a prepaid funeral contract is that you are paying now for a service that may increase in price—possibly saving your family money. You are also saving your family from having to make arrangements after you die, which can be difficult and time-consuming. And, if you are planning on applying for Medicaid, a prepaid funeral contract can be a way to spend down your assets.

Medicaid applicants for benefits to pay for long term care, including a skilled nursing home, must spend down their available assets until they reach the qualifying level (usually around $2,000, depending on the state). By purchasing a prepaid funeral contract, you can turn “available assets” (that Medicaid attributes to you as funds available to pay for long term care) into an exempt asset that don’t count as available assets and won’t affect your eligibility. In order for a prepaid funeral contract to be exempt from Medicaid asset rules, the contract must be irrevocable. That means you can’t change it or cancel it once it is signed.

Before purchasing a contract, you should shop around and compare prices to make sure it is the right contract for you. Buyers need to be careful that they are buying from a reputable company and need to ask for a price list to make sure they are not overpaying.

For information from the Federal Trade Commission on shopping for funeral services, click here.

If we can assist you with determining whether you are eligible for Medicaid benefits to pay for long term care, or how to restructure your countable assets to below the $2,000 threshold so that you are eligible for Medicaid benefits, please give us a call. If all you need to qualify for Medicaid benefits is a qualified income trust, because your income is too high, then click here to prepare a qualified income trust (“Miller Trust”).

Have you or a loved one been denied Medicare-covered services because you’re “not improving” or “not making progress”? Many health care providers are still not aware that Medicare is required to cover skilled nursing and home care even if a patient is not showing improvement. If you are denied coverage based on this outdated standard, you have the right to appeal.

For decades Medicare, skilled nursing facilities, and visiting nurse associations applied the so-called “improvement” standard to determine whether residents were entitled to Medicare coverage of the care. The standard, which is not in Medicare law, only permitted coverage if the skilled treatment was deemed to contribute to improving the patient’s condition, which can be difficult to achieve for many ill seniors.

Three years ago in the case of Jimmo v. Sebelius the Centers for Medicare & Medicaid Services (CMS) agreed to a settlement in which it acknowledged that there’s no legal basis to the “improvement” standard and that both inpatient skilled nursing care and outpatient home care and therapy may be covered under Medicare as long as the treatment helps the patient maintain her current status or simply delays or slows her decline. In other words, as long as the patient benefits from the skilled care, which can include nursing care or physical, occupational, or speech therapy, then the patient is entitled to Medicare coverage.

Medicare will cover up to 100 days of care in a skilled nursing facility following an inpatient hospital stay of at least three days and will cover home-based care indefinitely if the patient is homebound.

Unfortunately, despite the Jimmo settlement, the word hasn’t gotten out entirely to the hospitals, visiting nursing associations, skilled nursing facilities, and insurance intermediaries that actually apply the rules. As a result, the Jimmo plaintiffs and CMS have now agreed to a court-ordered corrective action plan, which includes the following statement:

The Centers for Medicare & Medicaid Services (CMS) reminds the Medicare community of the JimmoSettlement Agreement (January 2014), which clarified that the Medicare program covers skilled nursing care and skilled therapy services under Medicare’s skilled nursing facility, home health, and outpatient therapy benefits when a beneficiary needs skilled care in order to maintain function or to prevent or slow decline or deterioration (provided all other coverage criteria are met). Specifically, the Jimmo Settlement required manual revisions to restate a “maintenance coverage standard” for both skilled nursing and therapy services under these benefits:

Skilled nursing services would be covered where such skilled nursing services are necessary to maintain the patient’s current condition or prevent or slow further deterioration so long as the beneficiary requires skilled care for the services to be safely and effectively provided.

Skilled therapy services are covered when an individualized assessment of the patient’s clinical condition demonstrates that the specialized judgment, knowledge, and skills of a qualified therapist (“skilled care”) are necessary for the performance of a safe and effective maintenance program. Such a maintenance program to maintain the patient’s current condition or to prevent or slow further deterioration is covered so long as the beneficiary requires skilled care for the safe and effective performance of the program.

The Jimmo Settlement may reflect a change in practice for those providers, adjudicators, and contractors who may have erroneously believed that the Medicare program covers nursing and therapy services under these benefits only when a beneficiary is expected to improve. The Settlement is consistent with the Medicare program’s regulations governing maintenance nursing and therapy in skilled nursing facilities, home health services, and outpatient therapy (physical, occupational, and speech) and nursing and therapy in inpatient rehabilitation hospitals for beneficiaries who need the level of care that such hospitals provide

“The CMS Corrective Statement is intended to make it absolutely clear that Medicare coverage can be available for skilled therapy and nursing that is needed to maintain an individual’s condition or slow deterioration,” says Judith Stein, Executive Director of the Center for Medicare Advocacy and a counsel for the plaintiffs. “We are hopeful this will truly advance access to Medicare and necessary care for people with long-term and debilitating conditions.”

While this doesn’t change the rights Medicare patients have always had, it should make it somewhat easier to enforce them. If you or a loved one gets denied coverage because the patient is not “improving,” then appeal.

To read the court order implementing the new corrective action plan, click here.

If you need an advocate to assist you with obtaining compliance from nursing homes with the court ruling in Jimmo, or with planning to obtain Medicaid benefits without losing all of the assets you’ve taken a lifetime to accumulate, call us, we can help.

Prepare Your Florida QIT Right Here, Right Now

The irrevocable Florida qualified income trust, or "Miller Trust." that you can prepare online, for a fixed fee of $295. The trust document is reviewed by Florida elder law attorney C. Randolph Coleman. Mr. Coleman has been a practicing attorney and member of The Florida Bar for over 30 years.

Mr. Coleman has focused exclusively on elder law in Florida and estate planning matters for the past 30+ years, and has prepared hundreds of qualified income trusts that have been accepted by the Florida Department of Children and Families (or its predecessor HRS) to allow elderly skilled nursing home residents to qualify for Medicaid benefits to pay for the skilled nursing home cost.

The qualified income trust that is prepared online is guaranteed to be accepted by DCAF or you will receive a full refund of your purchase.

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Order Your Qualified Income Trust Here

The irrevocable Florida qualified income trust, or "Miller Trust." that you prepare online, for a fixed fee of $295. The trust document is reviewed by Florida elder law attorney C. Randolph Coleman. Mr. Coleman has been a practicing attorney and member of The Florida Bar for over 30 years. If you would like a telephone consultation with Mr. Coleman, or an email consultation with him regarding the qualified income trust, you can purchase those services by clicking here for a telephone consultation, and by clicking here for an email consultation.

Experienced Elder Law Attorney

Mr. Coleman has focused exclusively on elder law in Florida and estate planning matters for the past 30+ years, and has prepared hundreds of qualified income trusts that have been accepted by the Florida Department of Children and Families (or its predecessor HRS) to allow elderly skilled nursing home residents to qualify for Medicaid benefits to pay for the skilled nursing home cost. Mr. Coleman is a member of The Florida Bar Elder Law Section and the Real Property, Probate and Trust Law Section of The Florida Bar. He is rated by his professional peers AV (preeminent) by Martindale-Hubbell and has a 10.0 rating (Superb) by AVVO. He is a member of ElderCounsel, LLC, The National Association of Elder Law Attorneys, The Academy of Florida Elder Law Attorneys, the National Care Planning Council, and WealthCounsel, LLC.

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